Pennsylvania Superior Court Cases - Superior Court Case Law from PA - Pennsylvania Superior Court - unoffical reports

	ROMINGER LEGAL
		Pennsylvania Court Cases and Opinions - PA Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case was taken from the Pennsylvania Courts. Search our site for more cases - CLICK HERE

MOST CURRENT PENNSYLVANIA SUPERIOR COURT CASES

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

J-A12037-01
2001 PA Super 321
COMMONWEALTH OF PENNSYLVANIA,
:
IN THE SUPERIOR COURT OF
Appellee
:
PENNSYLVANIA

:
v.
:

:
TERRANCE MICHAEL STENHOUSE,
:
a/k/a TERRY STENHOUSE, a/k/a
:
STENHOUSE TERRANCE, a/k/a
:
TERRANCE STENHOUSE, a/k/a
:
TERRY MICHAEL STENHOUSE,
:
Appellant :
No. 435 WDA 2000
Appeal from the Judgment of Sentence entered
September 9, 1999, in the Court of Common Pleas of
Allegheny County, Criminal Division, No. 199712379
BEFORE:
DEL SOLE, P.J., EAKIN and BROSKY, JJ.
***Petition for Reargument Filed 11/29/2001***
OPINION BY EAKIN, J.:
Filed: November 15, 2001
***Petition for Reargument Filed January 25, 2002***
¶1
Terrance Michael Stenhouse appeals from the judgment of sentence
entered September 9, 1999. We affirm.
¶2
On September 18, 1998, police executed search warrants at two
separate residences, looking for drugs belonging to appellant. The police
found heroin and cocaine, as well as marijuana and drug paraphernalia, at
both residences. At a Hamilton Avenue address in the City of Pittsburgh, the
search revealed marijuana, 2.84 grams of heroin, and 1.72 grams of
cocaine. At a West Finley Drive address in Wilkinsburg, the search revealed
marijuana, 24.171 grams of heroin, and 1.260 grams of cocaine.
¶3
Appellant was charged with multiple violations including two counts of
possession and possession with intent to deliver cocaine, and two counts of
possession and possession with intent to deliver heroin. Appellant pled

J-A12037-01
guilty to all charges and was sentenced to an aggregate eight to twenty-six
years incarceration with fines. Following a hearing, the court denied
appellant's motion for a new trial. This appeal followed, in which appellant
raises the following issues:
I.
Was the guilty plea rendered unknowing and involuntary
by a defective colloquy which failed to establish a sufficient
factual basis in support of the offenses charged?
II.
Did the trial court below err in not allowing the defendant
to withdraw his guilty plea where the factual summary
presented during the plea colloquy was inadequate to
support the offenses to which he pled and plea counsel
rendered ineffective assistance in allowing the entry of the
unknowing and involuntary plea by not objecting to the
defective colloquy?
Appellant's Brief, at 8.
¶4
"[B]efore accepting a plea of guilty, the trial court must satisfy itself
that there is a factual basis for the plea." Commonwealth v. Maddox, 300
A.2d 503, 505 (Pa. 1973)(citations omitted). "A factual basis for the plea is
universally required." Commonwealth v. Thompson, 448 A.2d 74, 75
(Pa. Super. 1982).
¶5
Appellant argues there is nothing in the record to indicate that more
than a single possession and a single possession with intent to deliver
occurred with respect to each drug. He contends this makes the guilty plea
defective, such that he should be permitted to withdraw his plea and receive
a new trial.
- 2 -

J-A12037-01
¶6
Appellant argues it did not matter the drugs were in different locations
because he had continuous and uninterrupted possession of a single quantity
of drugs. Appellant does not cite any unique facts or authority to support
this proposition. The factual basis for the plea shows absolutely no evidence
of an original union of the disparate substances (cocaine, marijuana and
heroin). There is no evidence the substances were procured at one time or
from one source. If the different substances were purchased separately,1
then appellant must have combined them before they were again divided.
Either way, the propriety of multiple charges is determined by the facts at
the time of the charge, not by history.
¶7
Subdivision of a single quantity of drugs may not warrant separate
charges in all cases. We must rely on trial courts to deal with the issue on a
case-by-case basis, and cannot create a broad rule that covers every
situation. We certainly cannot preclude multiple possessory crimes simply
because drugs are fungible or sold from multiple outlets.
¶8
Even accepting appellant's allegations as gospel, this was not merely
repackaging and moving a portion of a larger mass to another bag or room.
There are two locations here, in separate municipal jurisdictions, miles
apart, and we can find no error in treating one stockpile as separate and

1 Common sense tells us there is no wholesale supermarket for controlled
substances, where a single source provides a dealer such as appellant with
one-stop shopping for marijuana, heroin and cocaine; these three
substances have different root sources.
- 3 -

J-A12037-01
distinct from the other. If appellant chose to have branch offices for his
business, the inventory at each office may form the basis for a separate
possessory crime. The record of the guilty plea hearing supports the
conclusion that a factual basis existed for the plea.
¶9
The facts were sufficient to support the offenses to which appellant
pled guilty; therefore, the learned trial court did not err in refusing to allow
withdrawal of the guilty plea. As for appellant's ineffective assistance of
counsel claim, "[t]rial counsel could not object to an errorless colloquy;
therefore, he acted effectively." Thompson, at 76.
¶10 Judgment of sentence affirmed.
¶11 BROSKY, J. files a Dissenting Opinion.
- 4 -

J. A12037/01
COMMONWEALTH OF PENNSYLVANIA, :

: IN THE SUPERIOR COURT OF
Appellee
:
PENNSYLVANIA

:
v.
:

:
TERRANCE MICHAEL STENHOUSE
:
A/K/A TERRY STENHOUSE A/K/A
:
STENHOUSE TERRANCE A/K/A
:
TERRANCE STENHOUSE A/K/A
:
TERRY MICHAEL STENHOUSE,
:
: No. 435 WDA 2000
Appellant
:
Appeal from the Judgment of Sentence of September 9, 1999,
In the Court of Common Pleas, Allegheny County,
Criminal Division, at No. 199712379.
BEFORE: DEL SOLE, P.J., EAKIN and BROSKY, JJ.
DISSENTING OPINION BY BROSKY, J.
¶1
I dissent. Appellant offers a rather interesting esoteric argument. If I
understand Appellant's argument correctly, Appellant essentially asserts that
"possession" is a continuing offense and is not logically or theoretically
related to quantity, packaging, subdivision or location. Thus, Appellant
asserts that, essentially, he was in "possession" of only one quantity of
cocaine and heroin simultaneously, although housed at two separate
locations. According to Appellant's argument, such circumstances would
allow only a single conviction for the continuing "possession" and
"possession with intent to deliver" of each controlled substance. As such,

J. A12037/01
the factual predicate did not support the plea of guilty to two separate
possession counts for each location. Since I agree, to a certain extent, with
Appellant's proposition, I believe that the factual predicate set forth in the
plea colloquy was inadequate and thus, Appellant should be entitled to
withdraw his plea.
¶2
The continuing offense aspect of Appellant's argument is strongly
supported by this Court's decision in Commonwealth v. Woods, 710 A.2d
626 (Pa. Super. 1998), appeal denied, 729 A.2d 1129 (Pa. 1998), which
dealt with the offense of possessing a weapon on the streets or, otherwise
stated, violating the Uniform Firearms Act (VUFA). Woods involved two
separate shooting incidents that occurred in a short time-span. Among the
various charges of which defendant-Woods was convicted were two counts
of possessing a weapon on the streets. Not coincidentally, the two counts of
this offense represented the number of shooting incidents that took place.
Among Woods' challenges was one that "he was improperly sentenced for
two violations of the Uniform Firearms Act as his continuous act of carrying a
firearm constituted only one offense of that Act and not two." Id., 710 A.2d
at 631. We agreed with that assertion and reversed the judgment of
sentence imposed on one of the counts. Our discussion on the matter is
rather instructive and, from a theoretical point of view, just as applicable to
a possession of a controlled substance charge:
It is important to point out that the violation of the Firearms
Act was separate and apart from appellant's usage of the
- -
6

J. A12037/01
firearm in the assaults. That is to say, appellant would have
been guilty of violating § 6108 by carrying a weapon
regardless of whether or not he used the weapon in the
commission of a crime. Logically speaking then, the
Commonwealth's decision to charge him with two violations
of this section is wholly arbitrary.
Under § 6108 a crime is committed by carrying a weapon
on a public street. In the context of an uninterrupted or
continuous carrying of a weapon at what point does one
stop "carrying" a firearm on the street and start anew?
Does one commit a violation of the Act with every step he
takes while carrying a firearm? Or does one commit a
violation based upon a certain passage of time? If so, how
much time must pass before a new offense begins? Is it a
separate offense for every hour one carries a weapon? Or
every ten minutes?
The fact of the matter is there was no evidence to indicate
that appellant carried the subject weapon in other than an
uninterrupted fashion for the entire period encompassing
the two assaults, as well an indeterminate period of time
before and after the assaults. Since under the Act
commission of the offense is not predicated upon the
commission of a crime with the weapon the charging of two
violations is no more logical than charging appellant for one
offense every ten minutes, or every hour, or every step he
took, while carrying a weapon. Although zealous District
Attorneys might embrace such an interpretation of the Act
we cannot. Since the offense is not linked to usage of the
firearm in a separate crime appellant's "carrying" of the
weapon must be construed, from a logical standpoint, to
represent a single offense of the statutory prohibition
against carrying a weapon upon the street. Since appellant
committed but one offense in carrying a weapon upon the
streets, he cannot have two sentences imposed upon him
for that violation.
Id., 710 A.2d at 631-32.
¶3
Woods would seemingly make clear that, logically enough,
"possession" offenses punish the possession of something that is illegal to
- -
7

J. A12037/01
possess and operate independently of criminal episodes or other tangential
or collateral factors. As such, Appellant's argument, upon its face, has
considerable merit. Nevertheless, to answer the question put to us it is
necessary to consider Appellant's argument in two contexts. First, where
the controlled substances are acquired at different times, and, second,
where they are acquired at the same time but split into two or more
separate quantities, i.e., stashes.
¶4
Considering the circumstance where contraband is acquired at
different times, it would seem clear such a circumstance would support
separate convictions. To hold otherwise we would have to conclude
possession is a completely nebulous concept without time or space
parameters. In this analysis, possession is simply a status, and nothing
more. Once "in possession," that status would not change unless total
dispossession subsequently occurred, even if the quantity of drugs varied
like the inventory of a department store. As such, under this theory the
amount of drugs in one's possession could change, with numerous
acquisitions of new narcotics, yet there would still only be one violation of
this section of the Crimes Code.
¶5
From a logical perspective, this approach would seem to run afoul of
the concept of completion. That is, once an individual possesses a quantity
of prohibited narcotics, all necessary elements of the offense are present.
As such, the crime is "complete" at that moment in time. Although, as long
- -
8

J. A12037/01
as an individual remains in possession of that illicit narcotic, he may be
guilty of committing a single "continuing offense" of possession, since the
crime is already "complete," a subsequent acquisition of another quantity of
narcotics would ostensibly represent another, whole new offense of
possession.
¶6
Indeed, Commonwealth v. Grekis, 601 A.2d 1275 (Pa. Super.
1992), would seemingly dispel such a status interpretation. Grekis involved
the crime of receiving stolen property (RSP), namely cigarettes. Grekis, the
owner of The Quick Stop restaurant, was convicted of nineteen counts of
receiving stolen property arising from a long running conspiracy wherein he
purchased large quantities of stolen cigarettes from an individual named
Lance Neuring for resale at the restaurant. Neuring acquired the cigarettes
by breaking into various stores and stealing them. Neuring would then
deliver the stolen cigarettes to the Quick Stop late at night. In addition to
the nineteen counts of RSP, Grekis was charged with nineteen counts of
conspiracy. The Court found meritorious Grekis' argument that the evidence
established only a single ongoing conspiracy to purchase and re-sell stolen
cigarettes. However, the Court found Grekis' related argument, that he was
similarly guilty of only one count of receiving stolen property, lacking in
merit. In dispelling this argument, the Court stated that each instance in
which stolen property was delivered and received constituted a separate
offense of RSP. In similar logic, we see no reason why each individual
- -
9

J. A12037/01
acquisition of a quantity of narcotics would not represent a separate offense
of possession of narcotics.
¶7
The above notwithstanding, with regard to the situation where an
individual splits or subdivides a quantity of narcotics into smaller quantities,
Appellant's argument has considerably greater logical appeal, even if the two
or more quantities are then further "separated" and moved to geographically
divergent locations. If a person acquired a certain quantity of narcotics, and
if possession is a continuing offense and need not be actual, but rather can
be constructive,2 nothing about the aspect of "splitting" the originally
acquired quantity into a greater number of smaller quantities would seem to
change the original "possession" into multiple possession offenses. Although
possessed in smaller quantities and, possibly, in separate locations, the
"possession" of the controlled substance would remain continuous and
uninterrupted. Stated alternatively, the party would never have
dispossessed himself of the controlled substance; thus, there would be only
one possession. In this respect, charging for possession based entirely on
location has no greater logical soundness than does the charging of
possession of a firearm based upon the number of times it was used

2 In a somewhat ironic twist, the idea of constructive possession, a theoretical legal
construct that is very prosecutorially friendly, aids Appellant's argument. Under the theory
of "constructive possession," one can be found in possession of narcotics even when they
are not on one's person. Indeed, as seen here, an individual can be in "possession" of
controlled substances even when they are not physically present at the location the
controlled substances are found. Given the flexibility of the concept of constructive
possession, it would seem much more likely from a theoretical point of view that one's
- -
10

J. A12037/01
criminally in Woods.3 In both cases, a factor actually extraneous to the
elements of the offense was called upon to determine the number of counts
charged.
¶8
To illustrate the above point, consider a circumstance in which a
person acquired a pound of marijuana packaged in a single bag. It would
seem that no one would assert the individual was guilty of more than one
possession offense, albeit for a pound of marijuana. After all, if one were to
suggest otherwise, how would one determine the number of possession
offenses? Would one be guilty of a count of possession for each ounce of
the larger package? For each potential "nickel bag," or "dime bag?" For
each quarter-ounce? Would one be guilty of one count for each individual
leaf of marijuana? Similarly, if the pound was split into 16 one-ounce
baggies, all contained in a single, larger bag on the same coffee table, it
would not seem that the individual had committed 16 separate possession
offenses.4 Further attenuating the circumstances, if the individual then hid
the baggies in separate locations in the same abode; a bag under the
kitchen sink, another in the sock drawer, one in the cookie jar - could it be
argued that he had committed 16 separate offenses? From a perspective of

possession of a controlled substance would remain uninterrupted from the date it was
acquired until ingested or transferred to another.
3 This is not to say that as a matter of practicality, separate quantities of controlled
substances found at separate locations should not be presumed to have been acquired at
different times. However, this is merely a matter of proof. From a perspective of the
elements of the crime, location is immaterial to the question of whether there has been
single or multiple possessions.
- -
11

J. A12037/01
legal theory, I see nothing in the act of separating the marijuana in that
fashion that would convert a single possession into multiple possessions.
Going a step further, if, after separating the marijuana into 16 parts, some
of the bags were moved to the garage or the car or to another address or
separate geographical location, would the answer be different? Again,
considering legal theory alone, there is nothing to suggest that the
individual's possession ever ended. Thus, there exists no reason to charge
for separate possession offenses.
¶9
While dealing with a different, and less serious, violation of the law,
Commonwealth v. Garris, 672 A.2d 343 (Pa. Super. 1996), contains
language echoing the analysis set forth above. There we stated:
"'Continuing offenses' are proscribed activities that are of an
ongoing nature and cannot be feasibly segregated into
discrete violations so as to impose separate penalties."
Newcomer Trucking v. P.U.C., 109 Pa. Commw. 341, 531
A.2d 85, 87 (1987) (citation omitted). Instantly, without
legislative guidance, it is impossible for us to segregate
Garris's inactivity into separate violations of § 750.7. Any
attempt to do so merely equates to an arbitrary judicial
determination. Taken to its logical extension, the
Commonwealth would have us find separate violations for
every hour, minute or second that Garris had not obtained a
permit. Appellee essentially requests that we re-write §
750.13 to read that the maximum penalty may be imposed
"per day for each violation."

4 Indeed, the Commonwealth in the present case did not attempt to charge Appellant with
more than one count of possession of each controlled substance per residence even though
the drugs were subdivided or packaged into numerous small quantities.
- -
12

J. A12037/01
¶10 A similar analysis was applied in a receiving stolen property case by
the Louisiana Supreme Court in the case of State v. Schnellner, 199 La.
81, 7 So. 2d 66, (1942), where the court stated:
It is clear that the defendant received and retained
possession of the same alleged stolen property on one
occasion only. While his unlawful possession continued over
several days, he committed only one offense insofar as the
particular merchandise is concerned. The unlawful
possession of the goods by the defendant over a period of
several days constituted a continuing offense and not a
separate and distinct offense for each day that he retained
the goods. Article 1306, Code of Criminal Procedure; R.S.
832, Act 72 of 1898.
¶11 Considering the above precedent I have to conclude that Appellant's
contention is meritorious with respect to a situation where a single quantity
of controlled substance is later subdivided, separated and moved to distinct
locations.
¶12 In contrast to Appellant's argument, the Commonwealth's counter-
arguments offer little in terms of legal theory, analysis or precedent. The
Commonwealth states "it is precisely because appellant intentionally divided
his drugs to make his operation more efficient and better protected that he
is guilty of two sets of charges." Commonwealth's Brief, at 11.5 The
Commonwealth's assertion is wholly lacking in reliance upon legal principle

5 The Majority echoes this sentiment stating:
Even accepting appellant's allegations as gospel, this was not merely
repackaging and moving a portion of a larger mass to another bag or room.
There are two locations here, in separate municipal jurisdictions, miles apart,
and we can find no error in treating one stockpile as separate and distinct
from the other. If appellant chose to have branch offices for his business, the
- -
13

J. A12037/01
or theory and bears no relation to the elements of the offense. In this
respect, the Commonwealth calls upon nothing more than the principle of
expediency and a sense that the "Appellant has broken the law, he should
receive no benefit of the doubt." Needless to say, we find such an
argument, the appeal to general sensibilities aside, unpersuasive.
¶13 Similarly, the Commonwealth quotes the following passage from
Commonwealth v. Williams, 496 A.2d 31, 42 (Pa. Super. 1985): "once a
defendant commits an original crime, he is not permitted to compound the
injuries he inflicts and then escape liability for additional crimes under the
guise that they were all done in the same criminal transaction," as if this
passage has applicability to the present case. However, in reality, if, as the
above discussion demonstrates, possession is a continuing offense,
Appellant's continued possession, even if in smaller and scattered quantities,
constitutes a single crime. In fact, in an ironic twist, it is the
Commonwealth, which quotes the above passage, that seeks to compound
the criminal liability of Appellant under the given situation. The
Commonwealth cites no provision of the crimes code that makes it illegal to
subdivide illegally possessed narcotics, nor any governing legal principle,6

inventory at each office may form the basis for a separate possessory crime."
Majority Opinion, at 3-4.
6 As such, no additional "injury" to the Commonwealth accrues from the act of subdividing
controlled substances.
- -
14

J. A12037/01
yet would seek the imposition of multiple punishment for a single possession
of narcotics.7
¶14 None of the above discussion is meant to sound determinative of the
ultimate question, that being whether Appellant in fact split a quantity of
illegal narcotics into smaller quantities while maintaining a single,
uninterrupted possession. Nor is it meant to address the quantum of proof
that might be necessary for the Commonwealth to prove that an individual's
possession of two quantities of narcotics originated at different times,
thereby allowing for the conviction on two counts of possession.8 The above
is simply meant to define, as clearly and correctly as possible, from a
theoretical standpoint, the legal parameters of possession offenses so it can
be determined whether or not Appellant's plea to two counts of possession of
each illegal substance was knowing. If Appellant and other pertinent players
in the guilty plea process were operating under a misapprehension of law,
then it is quite plausible that Appellant professed guilt to something of which
he was not guilty or entered a plea while operating under a misapprehension
of law.

7 Of course, most possession offenses are subject to mandatory minimum sentences which
vary by the weight of controlled substance possessed. Hence, a single possession
conviction of a larger amount of a controlled substance might result in the applicability of a
higher mandatory minimum than would have been applicable to the two or more smaller
quantities.
8 Our Supreme Court's decision in Commonwealth v. Andrews, 768 A.2d 309 (Pa. 2001),
might prove instructive in this regard.
- -
15

J. A12037/01
¶15 Given my conclusion above, I believe it was error to deny Appellant's
Motion for New Trial.9 Appellant correctly recites the law to the effect that
"a guilty plea should not be accepted if the facts do not support the plea."
Commonwealth v. Vaughn, 326 A.2d 393, 394 (Pa. 1974). Expanding
upon the ideas set forth in Vaughn, our Supreme Court, in
Commonwealth v. Hines, 437 A.2d 1180, 1182 (Pa. 1981), stated:
Because a guilty plea is not only an admission of conduct
but also is an admission of all the elements of a formal
criminal charge, and constitutes the waiver of
constitutionally-guaranteed rights, the voluntariness of a
guilty plea must be affirmatively established.
...
In order to satisfy the constitutional requirement that a
valid guilty plea must stand as an "intelligent admission of
guilt," the law of this Commonwealth has long required that
before a judge may properly accept a plea of guilty, a
colloquy with the defendant must demonstrate that there is
a factual basis for the plea and that the defendant
understands the nature and elements of the offense
charged.
Since it appears evident all players in the guilty plea process failed to make
the legal distinction presented in this Dissenting Opinion, and since the
factual predicate of the colloquy does not establish separate possession
offenses per the above analysis, I believe Appellant's plea was not knowing.
As such, Appellant should have been permitted to withdraw the plea and

9 Although captioned as a Motion for New Trial, Appellant's motion sought to withdraw his
guilty plea and should be viewed as a Motion to Withdraw Guilty Plea.
- -
16

J. A12037/01
proceed to trial to test the Commonwealth's evidence if he so wished.10
Since the Majority reaches the opposite conclusion, I dissent.

1 0 Alternatively, if the colloquy, viewed in abstraction, was deemed adequate, plea counsel
could be deemed ineffective for allowing Appellant to plead guilty to two counts of
possession where the factual predicate, viewed in context, did not establish the commission
of two counts of possession. Such a conclusion would require a remand, at a minimum, to
determine if there existed a reasonable basis for counsel's action. See Commonwealth v.
Proctor, 535 A.2d 131 (Pa. Super. 1987).
- -
17